FCC Begins Net Neutrality Inquiry

WASHINGTON – The Federal Communications Commission (FCC) unanimously voted Thursday to seek public comment on the need to add a network neutrality principle to its 2005 Internet Policy Statement.

By opening what is known as a Notice of Inquiry (NOI), the FCC hopes to determine if the marketplace behavior of broadband carriers threaten the historic open nature of the Internet. Both AT&T and Verizon have floated tentative plans to charge content providers extra fees based on bandwidth consumption. Neither telecom giant has implemented the idea.

“Although we are not aware of any current blocking situations, the Commission remains vigilant in protecting consumers’ access to content on the Internet,” said FCC Chairman Kevin J. Martin. “This inquiry will provide a convenient forum for various providers, including network and content providers, to tell us what is happening in the market and about their concerns.”

Martin said the NOI would seek comment on how broadband providers are managing their Internet traffic, whether certain traffic is prioritized and whether FCC policies should distinguish between content providers that charge end users for access to content and those that do not.

“Gathering this information will allow us to better monitor this market and determine the extent to which providers are acting consistently with our Internet Policy Statement,” Martin said. “The Commission is ready, willing and able to step in if necessary.”

In 2005, the FCC approved four “principles” that summarize the basic rights of Internet end users. The FCC said end users have the right to access content; run applications and services; connect devices to the network; and to expect competition among network, application, service and content providers.

The principles do not address discriminatory practices of broadband providers in handling network practice. Since AT&T and Verizon proposed a different fee structure for content providers, the issue of network neutrality has roiled Capitol Hill, largely along party lines.

Efforts by Democrats and a handful of Republicans to pass a federal law mandating non-discrimination in handling network traffic failed in the 109th Congress with Republicans, citing the lack of any hard evidence of actual network discrimination by broadband carriers, blocking the measure.

Similar network neutrality legislation has been introduced in the 110th Congress by Senators Byron Dorgan (D-N.D.) and Olympia Snowe (R-Maine).

“We have the dual responsibilities of creating an environment that promotes infrastructure investment and broadband deployment and to ensure that consumers’ access to content on the Internet is protected,” Martin said. “We can best fulfill these responsibilities by being fully informed.”

Although Democratic Commissioners Michael Copps and Jonathan Adelstein voted for the NOI, both said the FCC should have moved straight to a rule making process to add a non-discrimination principle to the FCC’s policy.

“We proceed too leisurely here. History shows that NOIs like this have a way of disappearing into the regulatory dustbin, putting off decisions that need to be made now,” Copps said. “If someone has both the technical capacity and the commercial incentive to control something, it’s going to get tried.”

Copps noted that polls by the Consumers Union and the Consumer Federation show that two-thirds of Internet users have “serious concerns” about the ability of broadband providers to block or impair Internet access to information and services.

“In a world where big and concentrated broadband providers are searching for new business models and suggesting Web sites may have to pay additional tolls for the traffic they generate, we need to keep our policies current,” he said. “It’s time for us to go beyond the original four principles and commit industry and the FCC unequivocally to a specific principle of enforceable non-discrimination.”

Adelstein noted that since the FCC embarked on a policy course of deregulating broadband service under former Chairman Michael Powell, the FCC moved away from the traditional consumer protections afforded to users of dial-up connections. As a regulated telecommunications service, telecoms providing dial-up service are prohibited from network traffic discrimination.

The FCC has since classified cable modem, DSL, broadband over power lines and wireless Internet as information services, largely freeing them of regulations beyond the agency’s 2005 Internet policies.

“We now face important questions about whether we can preserve those unique characteristics of the Internet, particularly given the Commission’s recent efforts to reshape the legal framework that we have operated under since the dawn of the Internet,” Adelstein said.

He added it is important to make FCC expectations clear to broadband providers because “decisions being made today about the architecture of the Internet could affect its character for years to come.”

In arguments paralleling the policy split at the FCC and in Congress, AT&T and the Internet advocacy group Public Knowledge rushed out statements following the FCC vote. AT&T praised the agency while Public Knowledge expressed disappointment.

“Those who are criticizing this formal proceeding do so because the facts are on our side, not theirs. We finally will move the debate from fiction to fact,” Robert Quinn, AT&T’s senior vice president of federal regulations, said. “For all consumers to reap the benefits of the broadband era, policymakers need to make informed decisions that rely on record evidence grounded in facts.”

Decisions about network neutrality, Quinn said, are too important to investment, deployment and innovation in the broadband marketplace to “gamble on hypothetical arguments that are not burdened by the facts.”

Like Copps and Adelstein, Public Knowledge President Gigi Sohn said the FCC NOI was not enough to protect consumers.

“This bureaucratic process will delay by months if not years the crucial action needed to guarantee that consumers will always have access to an open and non-discriminatory Internet — assuming that it issues a proposed rule after evaluating the information it receives from the inquiry,” Sohn said.

She also noted that simply because broadband providers have not actually imposed any extra fees on content providers, there is “no reason to delay action to protect consumers and content providers in the future from the actions of network operators which have said they will split the Internet into a privileged fast lane, and a dirt road for everyone else.”

An FCC spokesman said the NOI would be published “within weeks” and then public comment on it will be open for 90 days.

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